21/04/2024
ABUSE OF NAIRA OFFENCE:- HURDLES BEFORE THE PROSECUTION.
Uche Ekpo, Esq.
Under the Nigerian criminal justice delivery system, every allegation of crime must be proved beyond reasonable doubt to secure a conviction. See Bassey v. The State (2012) 12 NWLR (pt.1314) 209 @225.
And there are three (3) ways by which the Commission of Crime could be proved beyond reasonable doubt. These are:-
Confessional statement;
Evidence of eye witnesses (direct evidence); or
Circumstantial Evidence.
See Emeka v. State (2001) NWLR (pt.734) 667 @ paras. G-H.
It is imperative to state that where the Prosecution are relying on confessional Statement of the accused - that was made voluntary stating or suggesting the inference that he committed the crime of Naira abuse there is less burden on the prosecution as the law is trite that where a confessional statement is admitted without any objection, the court can rightly convict on the basis of the admission contained therein. See Ajibade v. The State (2013) 6 NWLR (pt.1349) 25 @ 47.
However, where in a charge of Naira abuse, the accused made no confessional statement and did not plead guilty to the charge, the burden of prove on the prosecution is onerous. This is because in a criminal trial, there is an obligation on the prosecution to prove its case beyond reasonable doubt. As it behooves on the prosecution to call material witnesses to prove its case. See Dairo v. F.R.N. (2012) 16 NWLR (pt.1325) 129 @ 193. The duty on the prosecution to call all material witnesses in a case stems from the nature of the burden of proof on the prosecution. See Bello v. The State (2007) 10 NWLR (pt.1043) 564 @ 585.
Respectively, herebelow are some of the hurdles the prosecution would be faced with where the sought to prove their case by direct evidence.
(1) Hearsay Evidence would Not Admissible for The Purpose of Establishing the Abuse of Naira
The offence of Naira Abuse is never proved by hearsay evidence. See Ogebide v. Osula (2004) 12 NWLR (pt.886) 86 @ 115. The evidence that would be required to establish naira abuse must be evidence of a witness who saw or heard or took part in the transaction upon which he was giving evidence. It is written law that hearsay evidence is not admissible for the purpose of establishing a crime. See section 77 of the Evidence Act.
It is imperative to state that a testimony will only be regarded as hearsay where the person making the statement is not the one who either saw it, heard it, perceived it, or gave it as his own personal opinion, but rather as what was said to him by another person. See Lasun v. Awoyemi (2009) 16 NWLR (pt.1168) 513 @ 523. In other words, for a statement to be hearsay evidence, its source, origin or author must be a person other than the witness saying or repeating it in court and the purpose of tendering it must be to prove that the facts asserted in the earlier statement are true. See Osho v. The State (2012) 8 NWLR (pt.1302) 243 @ 289
Where hearsay evidence was admitted unwittingly, that evidence should not be acted upon by the trial Court but if it did, an appellate court can overturn that judgment based on the fact that the finding of the trial Court was based upon inadequate evidence. See Rabiu v. State (1980) 8/11 SC 130; and Ebba Vs. Ogodo (2000) FWLR (pt.27) 2094, (1984) 1 SCNLR 372.
Thus, where a police witness in a Naira Abuse case testifies about what a prospective witness told him in the course of investigation, the evidence is hearsay and cannot form the basis of any judgment given by any court and it is immaterial whether the evidence was objected to or not by the other party. See Ekpo v. The State (2007) 7 NWLR (pt.712) 292 @ 304. In the case of Njoku v. The State (2013) 2 NWLR (pt.1339) 548 @ 568,
all that PW1, PW3 and PW4 told the Court were based on what they were allegedly told by the appellants. On whether the evidence of PW1, PW3 and PW4 amounts to hearsay, the Supreme Court held as follows: -
“It must be borne in mind that only the appellants were eye witnesses to what happened that day to the total exclusion of PW1, PW3 and PW4. Whatever PW1, PW3 and PW4 said regarding the incident other than what they saw or observed cannot be an eye witness account. If what they told the court is based on what they were allegedly told by the appellants or any of them, it is clearly a hearsay evidence which is inadmissible in law and cannot therefore be relied upon to convict the appellants for an offence of murder.”
(2) Evidence of an I.P.O. That Is Not Based On His Personal Knowledge Is Not Admissible
Evidence of an investigating police officer called to testify as to the admission by another witness of Naira Abuse who is not called to give evidence is no more than hearsay evidence and is distinguishable from the evidence of a police witness about what he saw and observed which is not hearsay. See Osho v. The State (2012) 8 NWLR (pt.1302) 243.
In other words, police witness evidence required to establish the crime of Naira Abuse must be evidence of what he saw or heard or took part in the transaction of Naira Abuse upon which he is to giving evidence. In the case of Kachi v. The State, (2015) 9 NWLR (pt.1464) 213, the PW3, a police officer who purportedly investigated but who did not arrest the appellant and did not recover any of the exhibits tendered in evidence by him. Consequently, he failed to link any of the recovered exhibits to the appellant. The Court of Appeal, per Oyewole, JCA, declaring the evidence of the PW3, a police officer inadmissible, held@ page 234
thus:-
“In the present situation however, PW3 was incapable of giving direct evidence of what he did not do. He could not explain how the appellant was arrested and how the saw taken from the appellant’s premises during a search never made its way into the evidence presented in the case. He gave no forensic evidence linking the appellant with the robbery in issue.
It goes without saying that the entire case of the prosecution is weak, unreliable and totally incapable of constituting proof beyond reasonable doubt.”
In the case of State v. Isah, (2012) 16 NWLR (pt.1327) 613, there was no investigation in the case by the two Policemen who gave evidence for the prosecution. Their only role was to obtain confessional statements from the respondents. The Supreme Court, per Rhodes- Vivour, JSC, said @ page 630, that:-
“The role played by the Police which ought to have been a thorough investigation of a robbery case could best be described as administrative or institutional inertia. A dismal effort that leaves much to be desired.”
Even where it involves expert evidence, it has been held that failure not to call an expert to testify in the open Court and for the Court to now rely on his documentary opinion is to deny the other side hearing on that issue. The principle of fair hearing would have seen to have been breached. See A.G. Federation v. Abubarkar (2007) 10 NWLR (pt.1041) 1 @ 182-183, per Aderemi J.S.C. (as he then was); Nimsa v. Hensmor Nig. (2015) 5 NWLR (pt.1452) 278 @ 314 paras. A-B; Shell Petroleum Dev. Co. Ltd v. Otoko (1999)) 6 NWLR (pt.159) 693 @ 713 paras. B-D.
(3) Suspicion that it was Naira that was Abused However Well Placed Cannot Amount to Admissible Proof
Suspicion, however strong, cannot support a conclusive inference of guilt. It is still wavering accusing finger of suspicion. Guilt can only be accepted when the accusing fingers stops wavering and stands straight and erect pointing unwaveringly that it was Naira that the accused abused. See Abacha v. The State (2002) 11 NWLR (pt.779) 437; Ohwovoriole v. F.R.N. (2003) 2 NWLR (pt.803) 176.
The criminal justice system in Nigeria would lose its essential requirement of proof by evidence beyond reasonable doubt if persons accused of Naira Abuse are connected on mere suspicion or mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be immaterial to the duty of the court not to convict an accused of an offence of Naira Abuse not proved by evidence. See Ahmed v. The State (2001) 18 NWLR (pt.746) 622; Onagoruwa v. The State (1993) 7 NWLR (pt.303) 49. In the case of Abiru v. The State, (2011) 17 NWLR (pt.1275) 1 @ 23-24; see also C.O.P. v. Ude (2011) 12 NWLR (pt.1260) 189 @ 217. The Court of Appeal, per Oredola, JCA, while holding that suspicion, however strong, cannot support a conclusive inference of guilt said that:-
“Thus, looking at the evidence on record, can it said as argued by the learned counsel for the respondent that both nexus and prima facie case had been made out against the appellant? Finding an answer to this question will entail a look at some pieces of evidence as adduced by the respondent in its bid to prove the charge. PW1- Dr. Paul Eleanya Adi repeatedly stated that he did not see the appellant and others in the act of destroying anything on the land. He added that the meeting of 1st July, 2007 took place in the house of the appellant who is the clan head. Similarly, PW2, Pius Ogar Okpe too, was not an eye witness to the incidents which led to the destruction wrought on the land as alleged against the appellant herein.
Going by the evidence on record which disclosed that the appellant had an altercation over the issue of land with PW1, it is thus not unexpected that the accusing fingers will be pointed at the appellant among others as one of the perpetrators of the criminal acts complained of.”
In the case of Shehu v. The State, (2010) 3 (pt.11) MJSC 74, the Appellant was arraigned and at the trial Court on a one count charge of mischief. The prosecution relied majorly on suspicion, namely, that the accused had boasted that the case would commence de-novo and thereafter, that the building hosting the Court which was trying the particular case, was burnt. The Supreme Court, per Mukhtar, JSC, in quashing the Appellant’s conviction held that:-
“Now are these pieces of evidence strong and cogent enough to infer that the Appellant set the Upper Area Court building on fire? I think not, for a careful perusal of the evidence does not disclose that the Appellant was seen either near the vicinity of the Court or on the premises of the incident. The only tangible evidence are the threats and boasts of the Appellant that one of the cases will start afresh, which could be given different interpretations, one of which could be that a superior court would order a rehearing on appeal. Besides, the Appellant had series of cases in the said Area Court, one of which he was a complainant. Would he actually want all the case files including the one he was a complainant burnt? I think not. The Appellant may have boasted, the Appellant may have voiced out threats, but he did not specify the action he was contemplating to take, and that I believe casts some doubt into the belief that he set fire on the building, for which he should have been given the benefit of the doubt. The law is trite that when there is doubt in the commission of crime by an accused person such doubt should be resolved in favour of the accused.”
(4) Video-Clip of Naira purportedly Abused Not Tendered by The Maker Lacks Probative Value
It is certainly the law that the proper person through whom the Video clip showing the event where Naira is abused is the maker of such Video-Clip. But where they were tendered by a person who never made them nor was present when they were made; in law the Video Clip is, at best, pieces of documentary hearsay and it is trite law that hearsay evidence is inadmissible in proof of any cause. See Maduekwe v. Okoroafor (1992) 9 NWLR (pt.263) 69 @ 41. The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non-maker of it is not in such a position. See the case of Omega Bank Plc v. OBS Ltd (2005) 8 NWLR (pt.928) 547 @ 582. See also the case of SHELL Petroleum DEv. Co. Ltd v. Otoko (1990) 6 NWLR (pt.159) 693 @ 713 paras B-D. Thus, in the case of Orji v. Ugochukwu, [CA/PH/EPT/197/08 delivered 11th February, 2009, page 90 -91), where the video-clip (exhibit ‘HS’) meant to prove the purported membership of the appellant as member of Okija secret Society was not tendered by one Dr. G.C. Duru who claimed to be the maker of the tape recording, it was held by the Court of Appeal thus:-
“On the issue of exhibit ‘HS’ that is to say the video clip, even though at the risk of repetition the learned senior counsel for the appellants, observed that one Dr. G.C. Duru who claimed to be the maker did not come to give evidence about the tape recording, it is only the said Dr. Duru who could give evidence on what he recorded and for what purpose. Furthermore, it is only Dr. Duru who can identify the persons he recorded and nobody else……………in aid the case of Maduekwe v. Okoroafor (1992) 9 NWLR (pt.263) 69 @ 41 (sic: 80-81) where this Court held: “I am not of the view that even if the tape is relevant because it was pleaded that is not sufficient, the requirements of S.91 of the Evidence Act have to be met. Those provisions are important on the admissibility of documents (a class into which exhibit HS the video tape falls) and they cannot be completely ignored whether the document is relevant or not relevant. I therefore hold that the tribunal (in this case, the Court of Appeal) was right to have rejected it.”
Lastly, the mere fact that a person accused of abusing Naira told lies is not by itself sufficient to convict him of the offence nor does the fact that the accused person has told lies relieve the prosecution of its duty of proving the guilt of accused of the offence charged beyond reasonable doubt. See Okpere v. The State (1971) 1 All NLR 1 @ 5; Agbo v. The State (2006) 6 NWLR (pt.977) 545 @ 572. The mere telling lies by an accused person may arise from fear, temerity, stupidity or the anxiety of the accused person to save himself without relieving the prosecution of the burden of proving the guilt of the accused beyond reasonable doubt. See Osuoha v. State (2010) 16 NWLR (pt.1219) 364 @ 412; Bello v. The State (2012) 8 NWLR (pt.1302) 207 238-239.
Uche Ekpo, Esq.
Alpha-Omega Juris Chambers
